In less than 24 hours this week, the U.S. Department of Health and Human Services filed an appeal in American Hospital Association v. Becerra — a lawsuit aimed at blocking enforcement of the Office for Civil Rights’ rule on the use of online tracking tools — and then quickly withdrew it.
The American Hospital Association, which sought to protect its members’ ability to use the tracking tools, issued a statement Thursday in which Chad Golder, the AHA’s general counsel, called the outcome a “victory.”
WHY IT MATTERS
While HHS appealed the June ruling from a Fort Worth, Texas, federal court, it quickly withdrew the appeal without giving a reason.
“The HHS Office for Civil Rights does not comment on litigation,” an agency spokesperson said via email Thursday.
The OCR Regulation, “Use of Online Tracking Technologies by Entities and Business Associates Subject to HIPAA,” is intended to protect patient privacy by limiting the scope of the use of tracking pixels.
But a Texas court blocked the agency’s ability to ban hospital websites from using consumer tracking technology under HIPAA and the Federal Trade Commission’s Health Breach Notification Rule, which it issued in December 2022 guidance on the use of the tools.
The American Hospital Association has long argued that HIPAA-covered entities are required to use online tracking pixels on websites and mobile apps, and that OCR’s efforts to restrict the use of third-party web technologies to collect IP addresses on public websites are “unlawful and unwise.”
THE BIGGER TREND
In the initial complaint the AHA filed in federal court, the hospital group said enforcing OCR’s rules on pixel trackers would upset “the balance that HIPAA and its regulations strike between privacy and information sharing.”
“HHS’s rule exceeds the government’s statutory and constitutional authority, fails to meet the agency’s regulatory requirements, and harms the very people it is intended to protect,” the AHA said when it filed the lawsuit in November.
While Advocate Aurora Health paid more than $12.2 million to settle a class action lawsuit over privacy violations related to the pixel in October 2022, legal counsel said there are safe ways for health systems and hospitals to manage pixel tracking if the case goes to court.
Along with the Texas Hospital Association, Texas Health Resources and United Regional Health Care System, the hospital group sued HHS. Seventeen state hospital associations and 30 hospitals and health systems filed court papers supporting the AHA and its co-plaintiffs in the lawsuit, according to the AHA statement.
ON THE RECORD
“As AHA has repeatedly explained to OCR — both before and after OCR compelled AHA to file suit — this rule is an overreach of the federal government, imposed without any input from health care providers or the general public,” Golder said in a statement just hours after HHS filed its appeal and then dropped the case.
“Now that the Bulletin’s unlawful rule has been completely repealed, hospitals can share reliable and accurate health care information with the communities they serve without fear of federal civil and criminal penalties.”
Andrea Fox is senior editor of Healthcare IT News.
Email: [email protected]
Healthcare IT News is a publication of HIMSS Media.
